Anthony Kennedy on Homeland Security

Supreme Court Justice (nominated by Pres. Reagan 1988)

Congress must enable habeas rights at Guantanamo

The 5-to-4 ruling that the detainees at Guantanamo Bay have a constitutional right to go to federal court to challenge their continued detention was the court's third consecutive rebuff to the Bush administration in a Guantanamo-related case. Justice
Kennedy, who had voted with the majority in the two earlier rounds, wrote the opinion in the case, Boumediene v. Bush. The guarantee of habeas corpus [the right to a hearing] applies at the Navy base in
Cuba, the court said, and the truncated alternative procedure that Congress set up was not an adequate substitute.

Chief Justice Roberts and Justice Scalia dissented, joined by Justices Thomas and Alito. The chief justice accused the
majority of judicial "overreaching." Justice Scalia warned that giving the detainees access to judicial review "will almost certainly cause more Americans to be killed."

Source: New York Times, "SCOTUS"
, Jun 29, 2008

All-male military schools like VMI must admit women

The decision in "US v. Virginia" that the Virginia Military Institute, the state's only single-sex school, must now admit women. VMI was, for 157 years, an all-male military college whose mission was to produce "citizen soldiers." The majority held that
it was the denial of equal protection for Virginia to offer this education only to men.

Justice Scalia was the sole dissenter (Justice Thomas took himself out of the case because his son attended another all-male military college, The Citadel). Scalia
observed: "The First Amendment readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the
democratic process and written into the Constitution. So to counterbalance the Court's criticism of our ancestors, this Court has embarked on a course of inscribing one after another of the current preferences on the society into our basic law."

Congress authorized detaining US citizens as enemy soldiers.

Yaser Hamdi, a US citizen, was captured in Afghanistan and detained as an enemy combatant in the US where he was permitted no contact with family or an attorney. His father sought the writ of habeas corpus. Hamdi had been in Afghanistan from Aug. 2001 and was with Taliban forces and armed when, after the US invasion of that country, he surrendered to Afghan forces allied with the US.

HELD: Delivered by O`Connor; joined by Rehnquist, Kennedy & Breyer

Enemy combatants may lawfully be held as a use of "necessary and appropriate force" by the President under the Authorization to Use Military Force (AUMF) provided by act of Congress after the 9/11 attacks. The laws of war allow detention of combatants during hostilities so they do not rejoin the enemy effort. Precedents allow US citizens to be held as combatants. Habeas corpus is available to challenge such a detention. Wartime concerns will restrict due process to presumptively correct facts; if a court finds that Hamdi took
up arms against the US, the AUMF authorizes his detention for the duration of hostilities.

CONCURRENCE:Souter concurs in judgment; joined by Ginsburg

There is criminal law to deal with citizens who use force against the government. The AUMF does not speak to detaining citizens. The claim to be holding Hamdi according to the law of war is undercut by holding him incommunicado, which is not the custom with a prisoner of war.

DISSENT #1: Scalia dissents; joined by Stevens

The executive's detention of citizens runs against core notions of liberty. To detain a citizen, the US must either criminally charge him or Congress must suspend the writ of habeas corpus. There is no middle ground. The Court should not fix problems within the authority of other branches to deal with.

DISSENT #2: Thomas dissents

The determination that Hamdi is a combatant who must be detained is within the war powers of the executive. The judiciary is not free to examine it.

Habeas writ for terrorists in indefinite custody.

Justice Kennedy wrote the concurrence on RASUL v. BUSH on Jun 28, 2004:

The petitioners, foreign citizens captured by the US military during the hostilities in Afghanistan and currently detained at the US naval base at Guantanamo Bay, Cuba, seek the writ of habeas corpus (right to a hearing) to challenge their indefinite detention without charges or hearing.

Persons held in custody can file a claim that the custody is illegal. By treaty, the Guantanamo naval base is under the complete jurisdiction and control of the US, even though Cuba retains "sovereignty" if the US abandons the base. That is sufficient for the habeas corpus statute. The petitioners have had no hearings, unlike the German nationals captured in China after WW II and imprisoned in Germany who were denied habeas corpus by the Supreme Court. Authority to hear these claims should be interpreted broadly because in the common law history of habeas corpus, this law extended to places under the
king's "dominion", even if not part of the "realm."

CONCURRED: Kennedy concurs

The Court's conclusions about certain statutory interpretation are incorrect, but the outcome is correct. The petitioners are far away from the military's combat operations, in a place entirely controlled by the US, and being held indefinitely, so should have the writ of habeas corpus.

DISSENT: Filed by Scalia; joined by Rehnquist & Thomas

The petitioners are not within the territory of a district court, nor even in the US; Parts of Afghanistan have been brought by lawful force and arms within US control as much as Guantanamo has. No English common law case allowed habeas writ to persons off British soil unless they also were citizens. The detention of combatants during war is a Constitutional power of the President. In the absence of a statute passed by the Congress, US courts have no authority in the matter, can only confuse military efforts, and will give comfort to the enemy.